Dissension Festering in the Net Neutrality Ranks

[qi:gigaom_icon_social_networking] A public interest group and Some law professors sent a letter to the Federal Communications Commission this morning questioning the FCC’s commitment to preventing carriers from discriminating against certain types of traffic on their pipes. The letter, signed by seven professors and endorsed by The Free Press, a pro-net neutrality group, attempts to add clarity to two aspects of the agency’s Notice of Proposed Rulemaking that was issued last month: reasonable network management and how the FCC plans to define discrimination on networks. It proposes that the FCC is en route to creating loopholes big enough for ISPs to neuter any net neutrality rules.

The group is concerned that the FCC may be proposing too narrow a definition of discrimination by limiting it to charging an application or other service provider more for delivering packets over an ISP’s pipe. It wants the FCC to clarify if this is the entire definition or merely an example of the potential for discrimination.

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As for reasonable network management, the professors are worried that the FCC doesn’t plan to make an effort to define it. Much like the famous legal test for obscenity proposed by Supreme Court Justice Potter Stewart, “I know it when I see it,” the group is concerned that network management would be determined by the commission in the same way, and that would defeat the purpose of trying to establish predictable rules regarding net neutrality. From the letter:

We think it is surprising that the FCC would not want to provide some guidance on the applicable standard for reasonable network management, lest, as a law professor would say, the exception swallow the rule. We do understand from the Notice that the Commission makes clear that it does not want to adopt the standard in Comcast, that a network management practice “should further a critically important interest and be narrowly or carefully tailored to serve that interest.” Again, if that is to be discarded, is the Commission asking commentators what the standard should be, or proposing no standard at all?

The whole aspect of reasonable network management is a big problem for the FCC in this debate, because to codify too much could lock carriers and researchers into a legal framework that wouldn’t take into account future innovations in protocols and ways networks could be managed, kind of like how “teaching to the test” has turned the U.S. education system into something that doesn’t really serve to educate. However, to leave it vague means that ISPs will have the leeway to implement unreasonable network management, leaving the burden of proof on affected parties, which is exactly what happened after Comcast throttled BitTorrent and is one of the reasons the FCC started this process in the first place.

The only practices that the FCC should prohibit are anticompetitive ones. So long as there is a competitive market, customers will vote with their wallets and their feet and will keep companies honest. Government should not intervene except in the case of monopoly leverage (which ISPs do not have, but Google, for example, does).

So then the FCC should already be stepping up? There isn’t a competitive market when you only get to choose from two players doing the exact same thing over different technologies. The fact is that the telecoms have divvied up the US and refuse to compete in each other’s markets. Perhaps 4G rollouts *might* make a dent in company practices, but it’s doubtful, considering the same telcos that want to fight net neutrality are also running our cell networks.

This is an important piece of analysis because it acknowledges the value of having some sort of reasonable network management practice while elevating the challenge of making sure it isn’t too big a loophole or too big a burden.

It makes one ask: is this an issue that is best dealt with by periodically smacking down an ISP or by trying to thread the needle on regulations like this? Given the FCC’s lack of expertise in this area I think there is a lot of risk in letting the FCC regulate. It is a tough nut to crack.